A team of lawyers on Jan. 20 will urge an appeals court in New York to rule that federal sex discrimination law covers sexual orientation bias, asking one judge in particular to change his mind on the issue ( Christiansen v. Omnicom Group, Inc., 2d Cir., No. 16-748, oral argument 1/20/17 ).

Attorneys for Matthew Christiansen want the U.S. Court of Appeals for the Second Circuit to overturn a nearly 17-year-old decision finding that sexual orientation discrimination isn’t banned by Title VII of the 1964 Civil Rights Act. Robert Katzmann, one of the judges who reached that decision in 2000, is also on the three-member panel reviewing Christiansen’s lawsuit against Omnicom Group Inc.

The Second Circuit is the latest federal appeals court to take up the question. The Seventh and Eleventh circuits have yet to reach decisions since hearing oral arguments in separate cases in 2016.

A federal judge in New York in 2016dismissed the creative director’s harassment claims against Omnicom, in which he alleged that former manager Joe Cianciotto taunted him relentlessly because Christiansen is gay. The judge said the earlier appeals court ruling made clear that the federal workplace bias law doesn’t expressly include sexual orientation discrimination but also urged Christiansen to appeal the case to the Second Circuit.

The oral arguments are scheduled to take place hours before President-elect Donald Trump takes the oath of office. Lawyers told Bloomberg BNA they expect the Equal Employment Opportunity Commission, which filed an amicus brief in support of Christiansen, to continue to argue once Trump takes office that sexual orientation bias is banned under federal law.

The company said in a briefing that the law in its current form simply doesn’t apply to sexual orientation discrimination allegations. Cianciotto argued in a separate brief that there’s no reason to overturn previous decisions--including the Second Circuit’s in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)--bolstering that position.

“It is disgraceful that Congress has not passed a statute protecting against discrimination based on sexual orientation,” Cianciotto’s lawyers argued. “But, Congress has not done so. Sexual orientation is not covered under Title VII, that is the state of the law, and this Court should not legislate from the bench.”

Christiansen, for his part, pointed to the U.S. Supreme Court’s shifting position on LGBT issues to argue that the sex discrimination ban should be read broadly. He emphasized in particular the justices’ decisions to strike down federal and state bans on same-sex marriage in United States v.Windsor, 133 S. Ct. 2675 (U.S. 2013), and Obergefell v. Hodges, 135 S. Ct. 2584 (U.S. 2015).

Those cases are “meaningless” if same-sex couples are left in the “most untenable position known as ‘married on Sunday, fired on Monday,’” Christiansen argued. “Meaning, under Windsor they can marry on Sunday and then under Simonton they can be fired on Monday because their same sex marriage gets no Title VII protection.”

Supreme Court Could Weigh In

The issue is widely expected to eventually end up in front of the Supreme Court. The justices may be called on to consider one or more of the related cases currently winding their way through the appellate courts.

“They are the same exact cases with the same exact questions,” Lask told Bloomberg BNA. “It’s just a matter of who goes first.”

The Seventh Circuit rejected arguments similar to Christiansen’s in 2016, when a three-judge panel said sexual orientation bias claims aren’t authorized under Title VII. That case has since been reheard by the full 11-member appeals court, which has yet to issue a ruling.

Meanwhile, the Eleventh Circuit in December heard arguments in a case in which a hospital security guard in Georgia alleged she was fired because she’s gay and has a traditionally male appearance. A federal district court originally dismissed the complaint.

What Will Trump Do?

A group of 128 Congressional Democrats, Lambda Legal and the American Civil Liberties Union are among those that have filed amicus briefs in support of Christiansen’s case. Log Cabin Republicans President Gregory Angelo told Bloomberg BNA he supports that position but still wants to see protections for LGBT workers expressly written into the law.

“Interpretations are just that: interpretations,” Angelo said. “They can by definition be changed on a whim.” The Log Cabin Republicans declined to endorse Trump over a variety of concerns, including about what he’ll do with an executive order that bans federal contractors from discriminating against workers based on sexual orientation or gender identity. Angelo said he’s been “in regular communication with the Trump team” and is “encouraged” by those discussions.

Lask and Reed Russell, who served as EEOC legal counsel in the George W. Bush administration, told Bloomberg BNA they don’t expect the agency to suddenly change its tune on the issue under Trump.

“I don’t think President-elect Trump cares about it,” Russell said when asked about concerns that the new White House could turn back protections for LGBT workers. “It’s not worth the candle, especially if you look at the landscape of the courts. It seems like there are other hills to die on.”

A demonstrator waves a rainbow flag in front of the US Capitol in Washington on October 11, 2009 as tens ofthousands of gay activists marched to demand civil rights, a day after President Barack Obama vowed to repeal a ban on gays serving openly in the US military.

Updated 1:23 PM ET, Wed June 29, 2016Washington (CNN)

Addressing what could be the next frontier in gay rights litigation, 128 Democratic members of Congress filed a brief in federal court on Wednesday arguing that a civil rights law should be interpreted to include claims of discrimination based on sexual orientation.

The friend-of-the-court brief was submitted in support of Matthew Christiansen, an openly gay man who is HIV positive, who is suing his employer under Title VII of the Civil Rights Act of 1964 that prohibits employers from discriminating against employees on the basis of sex.

Christiansen filed suit against his employer, Omnicom Group, alleging that one of his supervisors created a "pervasive hostile workplace atmosphere" in part by drawing sexually explicit pictures among other acts.

"At the heart of this appeal is whether Title VII protects those males and females whose sexual orientation is not heterosexual," Susan Chana Lask, Christiansen's lawyer, argued in court papers.

This is the first time members of Congress have weighed in on this issue in federal court, said Peter T. Barbur, the lawyer representing the lawmakers."To hold that sexual orientation does not fall under 'sex' in Title VII flies in the face of common sense," Barbur wrote. The signers of the brief are also cosponsors of the Equality Act, a legislative effort aimed at updating the nation's laws with respect to LGBT Americans.

Christiansen lost at the district court level when the judge ruled that as the law currently stands in her jurisdiction his claim could not be brought under Title VII.If Christiansen were to win his appeal, it would set an important precedent for future cases involving gay, lesbian and bisexual employees who face discrimination by their employers. There are about 28 states that do not provide express protection against discrimination based on sexual orientation. Supporters of Christiansen say that Title VII would be the only remedy for LGBT workers in those states.

Lawyers for Omnicom Group rejected several of Christiansen's claims including the one targeting Title VII. "This claim is based on allegations of sexual orientation discrimination which is not legally cognizable under Title VII" they wrote in court papers.

The U.S. Equal Employment Opportunity Commission has also filed a brief in the case in support of Christiansen's claim. In court papers EEOC lawyers argue that claims of sexual orientation can be made under Title VII because they involve sex stereotyping, gender-based associational discrimination, and consideration of an individual's sex." They also point to recent Supreme Court decisions and say the "legal landscape has changed."

No federal appeals court has recognized that Title VII prohibits discrimination based on sexual orientation.

"The EEOC was absolutely correct in concluding last year that sexual orientation discrimination, is a form of sex discrimination, and we hope that the 2nd circuit and other federal courts will agree," said Chris Stoll of the National Center for Lesbian Rights who is also filed a brief in the case. Arthur Leonard, a professor at New York Law School, says that though some federal district courts have ruled that such claims can be made, an appeals court ruling would make a big impact."A federal appeals court ruling allowing such claims would be a major breakthrough," Leonard said, "and could lead to a Supreme Court decision that would effectively ban sexual orientation discrimination in employment nationwide."

James Esseks, the director of the ACLU's LGBT Project said his group is working with Congress to get "explicit" protections enacted into law. "As that work continues, we must ensure that courts are correctly interpreting federal civil rights laws in a way that robustly protects the rights of LGBT people across the U.S," he said.

"At the heart of this appeal is whether Title VII protects those males and females whose sexual orientation is not heterosexual," Susan Chana Lask, Christiansen's lawyer, and a U.S. Supreme Court and civil rights litigator, argued in court papers.

In an unprecedented move, amici briefs supporting Christiansen were filed by the government's Equal Employment Opportunity Commission ("EEOC"), 128 Members of Congress, including Nancy Pelosi and Bernie Sanders ("Congress"), the American Civil Liberties Union ("ACLU") and a coalition of civil rights groups and public interest organizations, LAMBDA and the National Center for Lesbian Rights.

"At the heart of this appeal is whether Title VII protects those males and females whose sexual orientation is not heterosexual," Susan Chana Lask, Christiansen's lawyer, and a U.S. Supreme Court and civil rights litigator, argued in court papers.

In an unprecedented move, amici briefs supporting Christiansen were filed by the government's Equal Employment Opportunity Commission ("EEOC"), 128 Members of Congress, including Nancy Pelosi and Bernie Sanders ("Congress"), the American Civil Liberties Union ("ACLU") and a coalition of civil rights groups and public interest organizations, LAMBDA and the National Center for Lesbian Rights.

Susan Chana Lask and Matthew Christiansen Set to Change LGBT History

This is the first time members of Congress weighed in on this issue in federal court. "To hold that sexual orientation does not fall under 'sex' in Title VII flies in the face of common sense," their brief argues. The signers of the Congress Brief are also cosponsors of the Equality Act, a legislative effort aimed at updating the nation's laws with respect to LGBT Americans.

The EEOC Brief states that Congress created the EEOC to enforce Title VII and that the EEOC recently ruled that Title VII does protect sexual orientation in Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905, 2015 WL 4397641 (July 16, 2015).

The complaint alleges that Christiansen's supervisor Cianciotto created a "pervasive hostile workplace atmosphere" in part by drawing sexually explicit pictures of employees fornicating with each other, called them “gay”, “bottom” “poof” and accused them of being murderers of the children they sexually abuse, forced them to discuss their “gay” sex lives on a daily basis and accused gay males of having AIDS.

Like victims of the Stockholm Syndrome, Christiansen says that "I remember at times making an effort to connect with Joe so he would magically maybe see me as normal and not make fun of me anymore."

On March 9, 2016, Southern District Judge Failla found the allegations “reprehensible” by any metric, and asked the Second Circuit to recall its archaic holding in Simonton v. Runyon, 232 F.3d 33 (2d Cir. N.Y. 2000), prohibiting Title VII protection to homosexuals, and which constrained her from ruling in Christiansen's favor. Christiansen v. Omnicom Grp., Inc., 2016 U.S. Dist. LEXIS 29972,*39-46, (S.D.N.Y. Mar. 9, 2016).

On March 9, 2016, within an hour of that decision, Ms. Lask filed a Notice of Appeal to the Second Circuit.

On June 21, 2016, Christiansen's Brief was filed. Ms. Lask argues that equality should be the rule not just in marriage, but in the workplace; otherwise, the Second Circuit's recent decision in Windsor and the Supreme Court's Obergefell aremeaningless if same-sex couples are “married on Sunday, fired on Monday.”

In Windsor and Obergefell the courts gave homosexuals the right to marry (on Sunday), but under the Second Circuit's archaic Simonton they can be fired (on Monday) because they have no Title VII protection at work.

"To close that gap, it stands to reason that the equality this Circuit advanced with same-sex marriage in Windsor would extend to employment by including sexual orientation as protected “sex” in Title VII.", Lask argues in Christiansen's brief.

The next day, on October 12, 2016, Ms. Lask filed her Reply Brief explaining that Hively was reversed, and urging the appellate court that it too can reverse its own precedent from 2000 in Simonton, and arguing that Omnicom is wrong to claim that only an act of Congress can amend Title VII to cover discrimination based on sexual orientation.

“The truth is that someone has to be the leader in civil rights, and it does not have to be Congress in this case,” Lask argued.

On January 20, 2017, the Second Circuit held oral argument. The Circuit made clear that what happened to Christiansen was wrong, but that his relief would be under their current protection of sexual stereotyping discrimination because it would take a full panel, en banc, to overturn their Simonton precedent.

On March 27, 2017, the Second Circuit granted Christiansen relief under sexual stereotyping with a historic concurring decision by Chief Judge Katzmann and Justice Brodie finding that this Circuit should protect sexual orientation discrimination under Title VII. Since relief was granted to Christiansen, an en banc hearing of a similar case that lost and was denied any relief was heard September 26, 2017.

SummaryA gay advertising executive seeking to revive his bias suit against DDB Worldwide Communications Group Inc. told the appellate court Saturday to ignore the company’s citation to a recent Eleventh Circuit ruling that Title VII doesn’t protect against sexual orientation discrimination, saying it has little relation to his case.

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A gay advertising executive seeking to revive his bias suit against DDB Worldwide Communications Group Inc. told the appellate court Saturday to ignore the company’s citation to a recent Eleventh Circuit ruling that Title VII doesn’t protect against sexual orientation discrimination, saying it has little relation to his case.

Matthew Christiansen, an HIV-positive ad executive who claims he was harassed and intimidated by his supervisor at DDB Worldwide, a subsidiary of Omnicom Group Inc., has argued in his appeal that the general prohibition in Title VII of the Civil Rights Act against sex discrimination should cover bias that is based on sexual orientation, and that the Second Circuit’s precedent to the contrary in a 2000 decision known as Simonton v. Runyon should be overturned.

Last week, Omnicom wrote to inform the Second Circuit of a March 19 ruling by a split Eleventh Circuit panel that discrimination based on homosexuality is not prohibited by Title VII. That ruling, which may be reviewed en banc, mostly upheld the dismissal of a suit by Jameka Evans, a former Georgia Regional Hospital security guard who claimed she was harassed because she was a lesbian and didn’t conform to gender norms.

But in a response letter Saturday, Christiansen said both Omnicom’s letter and the Eleventh Circuit’s lead opinion didn’t consider two key U.S. Supreme Court cases: a 1989 ruling in Price Waterhouse v. Hopkins that expanded Title VII’s protections against sex discrimination to include discrimination based on gender stereotypes and a 1998 decision in Oncale v. Sundowner Offshore Services Inc. that Title VII could be extended to cover same-sex harassment.

“Conspicuously omitted from Omnicom’s letter is any analysis of how Evans denied sexual orientation to Title VII,” Christiansen’s letter said. “That is because Evans failed to make that analysis and instead relied on a case pre-dating Price Waterhouse and Oncale.”

Instead, Christiansen said the Eleventh Circuit’s ruling relied on its own precedent in a 1979 case known as Blum v. Gulf Oil Corp., which the ad executive argued isn’t precedential in the Second Circuit and is unrelated to his appeal that specifically focuses on overturning Simonton.

Christiansen argued that the Eleventh Circuit’s lead opinion offered only a cursory analysis of the Title VII issues at play, while a more robust analysis was offered in dissent by Eleventh Circuit Judge Robin S. Rosenbaum.

“Judge Rosenbaum calls this Title VII discrimination ‘prescriptive stereotyping,’ which is the failure of a sex, male or female, to comport to stereotypes of being attracted to the opposite sex that the employer expects that sex to be attracted to,” Christiansen’s letter said. “Simply put, Judge Rosenbaum’s dissent with Evans comports with Christiansen’s argument before this Circuit that this is all about ‘sex’ and Title VII prohibits discrimination ‘because of... sex.’”

The argument presented by Christiansen resembles one given last week in a similar case before the Seventh Circuit by Illinois college professor Kimberly Hively, who is alleging anti-gay bias against her employer, Ivy Tech Community College in South Bend, Indiana.

Ivy Tech had notified the appellate court of the Evans ruling shortly after it was issued, categorizing it as saying that Title VII does not cover sexual orientation claims but does cover gender nonconformity claims.

But Hively promptly responded with a letter of her own to the Seventh Circuit taking issue with that depiction, saying in part that it didn’t properly consider the Price Waterhouse and Oncale cases.

“What Evans held to be ‘foreclose[d]’... was not Title VII’s applicability to ‘sexual orientation claims’ (as Ivy Tech’s letter states) but instead its applicability to claims of ‘discrimination because of sexual orientation,’” Hively added. “This distinction was important to [Eleventh Circuit] Judge [William] Pryor, who posited [in a concurring opinion] that discrimination based solely on the target’s ‘homosexuality’ or gay ‘status’ is not actionable, while discrimination based on any gender-nonconforming ‘behavior’ is actionable.”

Christiansen is trying to revive a suit alleging that his supervisor at DDB harassed and discriminated against him by circulating lewd pictures around the office and on Facebook depicting Christiansen performing vulgar acts and started false rumors that Christiansen had AIDS. The Equal Employment Opportunity Commission has sided with Christiansen in the case.

The case was dismissed by U.S. District Judge Katherine Polk Failla last year in part because Simonton held that Title VII excludes claims of sexual orientation discrimination.

Counsel for Omnicom was not immediately available for comment Monday.

Christiansen is represented by Susan Chana Lask of the Law Offices of Susan Chana Lask.

A gay advertising executive asked the full Second Circuit on Friday to revise its precedent that Title VII doesn’t protect against discrimination based on sexual orientation, much like the Seventh Circuit recently did, saying such a ruling is needed to provide much-needed clarity both to lower courts and employers.

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A gay advertising executive asked the full Second Circuit on Friday to revise its precedent that Title VII doesn’t protect against discrimination based on sexual orientation, much like the Seventh Circuit recently did, saying such a ruling is needed to provide much-needed clarity both to lower courts and employers.

Matthew Christiansen, an advertising employee at an Omnicom Group Inc. unit asked the Second Circuit to revisit the issue after a three-judge panel in March revived his claims alleging he was harassed at work for failing to fit “male stereotypes,” but not his claims that he was mistreated based on his sexual orientation.

That panel held that Christiansen could pursue his claim that he was harassed for his perceived effeminacy under the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, which said discrimination for failure to comport to gender stereotypes is illegal under Title VII. But the court declined to revive Christiansen’s allegations that he was harassed for being gay, citing precedent from a 2000 decision by the Second Circuit known as Simonton v. Runyon that sexual orientation bias is not covered by Title VII.

In Friday’s petition, Christiansen said that reconciling the issue of sexual orientation and the Simonton precedent “would give clarity to this circuit’s courts, eliminate future piecemeal cases on the issue and provide employees and employers guidance regarding what discrimination is prohibited.”

Christiansen said his case "gives this court not one reason, but over 1 million reasons why an en banc panel should answer once and for all whether this circuit will protect sexual orientation under Title VII.”

Christiansen, who is HIV-positive, had initially sued Omnicom unit DDB Worldwide Communications Group Inc. and several individuals in May 2015 alleging he was discriminated against and harassed in violation of Title VII, the Americans with Disabilities Act and other statutes.

In the Second Circuit’s March ruling, Chief Circuit Judge Robert Katzmann issued a concurring opinion in which he suggested that the court’s decision in Simonton and 2005 decision in Dawson v. Bumble & Bumble misunderstood Title VII, detailing three arguments under which sexual orientation discrimination could fall under the statute’s ban on discrimination “based on... sex.”

Judge Katzmann, who sat on the Simonton panel and whose concurrence was co-signed by Judge Margo K. Brodie, said he hoped for an “appropriate occasion” that would allow the Second Circuit or another court to revisit its precedent.

In his brief Friday, Christiansen referred directly to Judge Katzmann’s concurrence, saying that he and Judge Brodie concluded that Simonton “is not good law and that sexual orientation should be protected.”

“Strikingly, support for en banc review comes directly from the Christiansen concurrence,” Christiansen said. “Although historically en banc review is disfavored in this circuit as Chief Judge Katzmann clarified... in Christiansen’s concurrence he took the extraordinary step to urge it.”

Christiansen’s brief also referred to a landmark ruling in early April by the full Seventh Circuit, which tackled the Title VII issue by ruling 8-3 that employers can’t discriminate on the basis of sexual orientation under the statute. The ruling made the Seventh Circuit the first appellate court in the country to set such a precedent.

Christiansen’s brief noted that the Seventh Circuit panel cited Judge Katzmann’s concurrence and its rationale that Title VII does protect sexual orientation. The Seventh Circuit’s ruling also “exposed the deeply flawed reasoning” in the Second Circuit’s precedent and “laid out a principled path” to reexamining Simonton.

“Indeed, [the en banc Seventh Circuit] cited this circuit’s concurrence and used its test that ‘but for’ the sex then the discrimination would not have occurred,” Christiansen said. “En banc review would determine whether this circuit should align itself with the Seventh Circuit that confronted the same issue after this panel’s opinion. Armed with a sister circuit en banc decision using this circuit’s concurrence, en banc review should reconcile Simonton to secure and maintain uniformity in decisions here.”

Susan Chana Lask, counsel for Christiansen, told Law360 that “it’s undeniable that en banc has to be granted” in this case.

An attorney for Omnicom was not available for comment.

Christiansen is represented by Susan Chana Lask of The Law Offices of Susan Chana Lask.

SummaryA gay Omnicom Group Inc. unit ad executive asked the Second Circuit on Wednesday for more time to petition for an en banc rehearing that could overturn precedent putting sexual orientation bias out of federal reach, a day after the Seventh Circuit’s landmark ruling that bias against gays is illegal under Title VII.

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A gay Omnicom Group Inc. unit ad executive asked the Second Circuit on Wednesday for more time to petition for an en banc rehearing that could overturn precedent putting sexual orientation bias out of federal reach, a day after the Seventh Circuit’s landmark ruling that bias against gays is illegal under Title VII.

Attorney Susan Chana Lask told the court that she has been in trial since late March and will need until April 28 to craft a petition for the court to rehear Matthew Christiansen’s suit alleging that he was harassed by his supervisor because of his sexuality.

A Second Circuit panel in March revived Christiansen’s claim that he was harassed for his perceived effeminacy under the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, which said discrimination for failure to comport to gender stereotypes is illegal under Title VII. However, the court declined to revive Christiansen’s allegations that he was harassed for being gay, citing precedent stating that sexual orientation bias is not covered by Title VII. Similar precedent exists in other circuit courts.

In a concurring opinion, Judge Robert Katzmann suggested that the court’s 2000 decision in Simonton v. Runyon and 2005 decision in Dawson v. Bumble & Bumble misunderstood Title VII, detailing three arguments under which sexual orientation discrimination could fall under the statute’s ban on discrimination “based on... sex.” Judge Katzmann, whose opinion was co-signed by Judge Margo K. Brodie, said he hoped for an “appropriate occasion” that would allow the Second Circuit or another court to revisit their precedent.

An en banc rehearing of Christiansen’s suit would provide the court such an opportunity. Should the Second Circuit grant an en banc rehearing, it would be following a lead set last fall by the Seventh Circuit. The Chicago appeals court tossed aside precedent barring teacher Kimberly Hively’s claim that she was denied promotions because she’s a lesbian after a three-judge panel decried a “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday” when it affirmed dismissal of her case in July.

The full Seventh Circuit ruled 8-3 on Tuesday that employers cannot discriminate on the basis of sexual orientation under Title VII, becoming the first appeals court in the country to do so. The majority cited several related U.S. Supreme Court cases and ruled that Hively’s claim — that but for her gender, the South Bend, Indiana-based Ivy Tech Community College would have kept her on staff — is valid under Title VII.

The Eleventh Circuit may also wade into the growing debate over whether the circuit consensus on sexual orientation discrimination is wrong. Last week, former Georgia Regional Hospital security guard Jameka Evans asked the Eleventh Circuit to rehear her case alleging that she was harassed because she's a lesbian after the court said its precedent barred her claim. Evans’ counsel, LGBT rights legal group Lambda Legal, also represents Hively.

Attorneys for Omnicom did not immediately respond Thursday to requests for comment.

SummaryAn Illinois college professor alleging anti-gay bias told the Seventh Circuit on Wednesday that her employer misread a recent ruling in the Eleventh Circuit that Title VII doesn’t protect against sexual orientation discrimination, the same day that an ad agency being sued by a gay executive notified the Second Circuit about that same ruling.

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An Illinois college professor alleging anti-gay bias told the Seventh Circuit on Wednesday that her employer misread a recent ruling in the Eleventh Circuit that Title VII doesn’t protect against sexual orientation discrimination, the same day that an ad agency being sued by a gay executive notified the Second Circuit about that same ruling.

At the heart of the various disputes is a ruling issued March 10 by a split Eleventh Circuit panel that discrimination based on homosexuality is not prohibited by Title VII of the Civil Rights Act. That ruling, which may be reviewed en banc, mostly upheld the dismissal of a suit by Jameka Evans, a former Georgia Regional Hospital security guard who claimed she was harassed because she’s a lesbian and didn’t conform to gender norms.

Whether the statute’s general prohibition against sex discrimination covers bias that is based on sexual orientation has developed into a hot-button issue that had led numerous other circuits, including the Second and Seventh, to grapple with revising their own precedents to the one the Eleventh Circuit upheld in Evans’ case.

Employers accused of Title VII violations in the cases currently pending before the Manhattan- and Chicago-based appellate courts took notice of the Eleventh Circuit’s decision.

On Monday, Ivy Tech Community College in South Bend, Indiana, which is embroiled in a dispute with professor Kimberly Hively, notified the Seventh Circuit of the Evans ruling, categorizing it as saying that Title VII does not cover sexual orientation claims, but does cover gender nonconformity claims.

But Hively, who is trying to revive her suit alleging she was repeatedly passed over for promotions because she is gay, took issue with that depiction Wednesday by telling the appellate court that it warrants clarification.

Hively said in her letter that the Eleventh Circuit largely chose to ignore the U.S. Supreme Court’s landmark 1989 ruling in Price Waterhouse v. Hopkins that expanded Title VII’s protections against sex discrimination to include discrimination based on gender stereotypes.

The Eleventh Circuit also didn’t consider the impact of the high court’s 1998 decision in Oncale v. Sundowner Offshore Services Inc., which held that Title VII could be extended to cover same-sex harassment, Hively said.

“What Evans held to be ‘foreclose[d]’ … was not Title VII’s applicability to ‘sexual orientation claims’ (as Ivy Tech’s letter states) but instead its applicability to claims of ‘discrimination because of sexual orientation,’” Hively added. “This distinction was important to [Eleventh Circuit] Judge [William] Pryor, who posited [in a concurring opinion] that discrimination based solely on the target’s ‘homosexuality’ or gay ‘status’ is not actionable, while discrimination based on any gender-nonconforming ‘behavior’ is actionable.”

Judge Pryor’s position, when coupled with a dissenting opinion in the Evans case by Circuit Judge Robin S. Rosenbaum, “means that two of the three Evans judges view Title VII as applicable to all ‘sexual orientation claims’ where the discrimination is not exclusively status-based,” Hively said.

Meanwhile, a similar back-and-forth is developing before the Second Circuit, which is considering whether to reverse a nearly 20-year-old precedent that sexual orientation discrimination isn’t covered under Title VII.

That case involves Matthew Christiansen, an HIV-positive advertising executive who claims his supervisor at DDB Worldwide Communications Group Inc., a subsidiary of Omnicom Group Inc., harassed and discriminated against him by circulating lewd pictures around the office and on Facebook depicting Christiansen performing vulgar acts and started false rumors that Christiansen had AIDS. The Equal Employment Opportunity Commission has sided with Christiansen in the case.

On Wednesday, Omnicom informed the Second Circuit about the Eleventh Circuit’s ruling, saying the Evans ruling relied on that circuit’s precedent to hold that Title VII doesn’t cover sexual orientation discrimination claims.

SummaryThe Second Circuit on Monday revived a gay, HIV-positive advertising executive’s suit alleging that an Omnicom Group Inc. subsidiary violated Title VII of the Civil Rights Act by allowing him to be harassed over his perceived effeminacy, although the panel lamented that its precedent barred a finding that he had a claim for mistreatment over his sexuality.

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The Second Circuit on Monday revived a gay, HIV-positive advertising executive’s suit alleging that an Omnicom Group Inc. subsidiary violated Title VII of the Civil Rights Act by allowing him to be harassed over his perceived effeminacy, although the panel lamented that its precedent barred a finding that he had a claim for mistreatment over his sexuality.

The panel said that Matthew Christiansen stated a plausible gender stereotyping claim under the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins and ordered the Southern District of New York to hear that portion of his suit.

The court said the fact that Christiansen focused more on the alleged harassment over his sexual orientation than his being stereotyped based on his sex did not undermine the latter argument. Further, two judges rebuked past findings by the Second Circuit and other appeals courts saying that sexual orientation discrimination is not covered by Title VII, saying they hope to soon have a chance to set the law straight.

“I respectfully think that in the context of an appropriate case our court should consider re-examining the holding that sexual orientation discrimination claims are not cognizable under Title VII,” Judges Robert Katzmann and Margo K. Brodie wrote in a concurring opinion. “Other federal courts are also grappling with this question, and it may well be that the Supreme Court will ultimately address it.”

Christiansen, who was creative director at Omnicom unit DDB Worldwide Communications Group Inc., is alleging that his direct supervisor repeatedly mocked him because of his sexuality and perceived feminine manner. His allegations include that the supervisor drew an image depicting “a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, ‘I’m so pumped for marriage equality,'" according to court documents.

Christiansen alleged that Omnicom and his supervisor violated the Americans with Disabilities Act, Title VII and state and local law by discriminating against him because of his HIV-positive status and failure to conform to gender stereotypes.

However, the Southern District of New York dismissed his federal claims and declined to hear his state claims, finding that the Second Circuit’s rulings in Simonton v. Runyon and Dawson v. Bumble & Bumble do not allow sexual orientation discrimination claims under Title VII. The district court also found that Christiansen’s complaint focused more on his sexuality than his effeminacy, undermining his sex stereotyping argument.

Although the panel noted that it has no power to overrule the Simonton and Dawson decisions, it said that the district court erred on the stereotyping claim. Christiansen might be hard-pressed to fight off summary judgment or prove at trial that he was harassed because of his perceived effeminacy, the court conceded, but that’s not the question presented now.

“Even if that were Christiansen’s burden at summary judgment or at trial — and we do not hold here that it is — it is not our task at the motion to dismiss stage to weigh the evidence and evaluate the likelihood that Christiansen would prevail on his Title VII gender stereotyping claim,” the panel said.

“It’s a great decision that the circuit needed,” Lask said. “We have a chief judge [in Katzmann] that went out of his way in his concurring decision to outright say Title VII does include sexual orientation, so now employers need to take this seriously.”

Attorneys for Omnicom declined to comment on Monday.

Judges Katzmann, who was on the Simonton panel, and Brodie further opined that Christiansen and others, including the U.S. Equal Employment Opportunity Commission, made three compelling arguments for sexual orientation discrimination falling under Title VII’s reach, including that harassment against the gay, lesbian and bisexual community would not happen “but for” their sex.

Although other appeals courts around the country are bound by similar precedent to the Second Circuit’s Simonton and Dawson decisions, the Seventh Circuit in November reheard en banc a Chicago college professor’s suit alleging that she was passed over for a promotion because she is a lesbian. The court signaled in oral arguments that it could overturn precedent and find that Title VII covers sexual orientation discrimination.

Judges Katzmann, Brodie and Debra Ann Livingston sat on the panel for the Second Circuit.

The latest test of whether part of the Civil Rights Act can be read to bar workplace discrimination because of sexual orientation proved complicated Jan. 20 at the U.S. Court of Appeals for the Second Circuit.

A three-judge panel wrestled with the impact of a U.S. Equal Employment Opportunity Commission about-face on the issue, and the court's power to overturn its own precedent saying Title VII doesn't cover sexual orientation.

It's not about sex per se—it doesn't matter who you slept with last night," attorney Susan Chana Lask said for plaintiff Matthew Christiansen. "It's about skills."

Christiansen, a creative director at DDB Worldwide Communications Group and an openly gay man, claimed supervisor Joe Cianciotto subjected him to ridicule and abuse by making extreme anti-gay comments, passed around a picture of Christiansen's face pasted over a woman in a bikini in the "gay sexual receiving position" and then posted it online, and drew offensive pictures of Christiansen on an office whiteboard. Included were comments about AIDS addressed to Christiansen, who is HIV-positive.

Last March, U.S. District Judge Katherine Polk Failla of the Southern District of New York, while decrying the treatment as "reprehensible," dismissed the case, saying she was hamstrung by the circuit's decision in Simonton v. Runyon , 232 F3d 33 (2d Cir. 2000) which said Title VII's bar on discrimination "because of … sex" did not mean sexual orientation.

Jan. 20, Judges Robert Katzmann, Debra Ann Livingston and Eastern District Judge Margo Brodie had several questions on whether they could overrule Simonton or whether it would require an en banc sitting of the court to do so. Christiansen's case may come under Title VII's reach for discrimination based on sexual stereotyping, they noted, but the circuit in Simonton said clearly that a plaintiff may not use "a gender stereotyping claim to bootstrap protection for sexual orientation into Title VII."

Lask argued the times have changed and cited the successful fights at the Supreme Court to ban prohibitions on gay sex and recognize same-sex marriage—and she urged the circuit to adopt a broader definition of "sex" in the law.

The EEOC changed positions in 2015 to state the statute logically covers sexual orientation, and the agency has succeeded in persuading some district courts that is the case.

Significantly, the lone appellate court to address the issue is the Seventh Circuit, where a three-judge panel rejected sexual orientation in Hively v. Ivy Tech Community College ,830 F. 3d 698(2016), only to have the full court vote in October to vacate the opinion and rehear the case en banc.

Katzmann asked Barbara Sloan of the EEOC Jan. 20 why the EEOC changed its position and why it should matter to the circuit. "We recognize that the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time," said Sloan. The Seventh Circuit and some districts, she said, have taken note that "it all boils down to the same thing—the employer takes sex into account when it discriminates based on sexual orientation."

Jan. 20's appeal in Christiansen v. Omnicom Group, 16-748, drew several amici, including 128 members of Congress, who in a brief by Peter Barbur of Cravath, Swaine & Moore, said, "Simonton must be overturned because it relied on incorrect interpretations of congressional actions and outdated law to justify an incoherent interpretation of 'sex' under Title VII."

Howard Rubin of Davis & Gilbert, for all defendants but Cianciotto, argued Christiansen's claims were not actionable and the statute of limitations had clearly expired. On the latter issue, unaddressed by Failla, Katzmann asked, "Why shouldn't it just go back to the district court?"

The circuit, Rubin answered, can decide it, but he would be "pretty comfortable" about prevailing on remand.

Rick Ostrove of Leeds Brown Law, arguing for Cianciotto, denied the depictions were offensive, and when Brodie disagreed, he insisted, "It's not an attack on sexual orientation merely because it's childish and shouldn't be in the workplace."

"Isn't this a comparable evil?" he asked. "Quite frankly, I don't think this is the case for it," Ostrove answered, and, when pressed by the court again, said, "I think that it's an evil and I think it shouldn't exist," but it was up to Congress to make that call.

Livingston later asked Lask if she was arguing the EEOC shift in position "would give us the authority to reverse Simonton?" Initially, Lask said yes, but then relied on the changes in the legal landscape on sexual identity, highlighted by the Seventh Circuit's reconsideration in Hively.

New York Law Journal (Online) This article also appears in the following ALM publications: New Jersey Law JournalMarch 27, 2017 Monday

Byline: Mark Hamblett

A federal appeals panel on Monday recognized that a man who claimed he was subjected to workplace discrimination because he didn't conform to gender stereotypes can sue under Title VII of the Civil Rights Act of 1964.

The U.S. Court of Appeals for the Second Circuit reinstated the dismissed Title VII claim of Matthew Christiansen, an openly gay man who said he was subjected to ridicule and abuse by a supervisor in his job as a creative director at DDB Worldwide Communications Group.

The court held that Christiansen adequately pleaded that he had been discriminated against "because of... sex" within the meaning of Title VII.

However, Judges Robert Katzmann, Debra Ann Livingston and Eastern District Judge Margo Brodie declined the invitation to break new ground and hold Christiansen had stated a claim for workplace discrimination based on his sexual orientation-saying they lacked the authority to overrule case law established in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005).

But Katzmann penned a concurrence, joined in by Brodie, saying that the time had come to recognize that discrimination based on sexual orientation can be actionable under Title VII.

Southern District Judge Katherine Polk Failla had dismissed Christiansen's suit after finding those cases required holding that sexual orientation discrimination does not come under Title VII's definition of discrimination "because of... sex."

Failla noted there were several allegations that Christiansen's supervisor, Joe Cianciotto, was ridiculing him for effeminacy in comments and drawings. But she found Christiansen's complaint centered on discrimination for being gay, not because he failed to conform to a masculine stereotype.

Because Cianciotto also made remarks connecting effeminacy, sexual orientation and HIV status, Christiansen, who is HIV-positive, also brought a claim under the Americans with Disabilities Act, but that was dismissed as well.

Christiansen's appeal included support from the U.S. Equal Employment Opportunity Commission (EEOC), which in 2015 changed its opinion and began arguing it was time to recognize sexual orientation discrimination under Title VII.

The EEOC's view is among those currently being weighed by the U.S. Court of Appeals for the Seventh Circuit, which sat en banc in November after vacating a panel's refusal to recognize sexual orientation in Hively v. Ivy Tech Community College, 830 F.3d 698 (2016).

Included among the amici in Christiansen were 128 members of Congress who urged the Second Circuit to reverse course.

The circuit, by per curiam opinion, reinstated the claim based on gender stereotyping under the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where a female senior manager described as "macho" and "masculine" was told to act, talk, walk and dress more femininely if she wanted to improve her chances for advancement.

Christiansen, the circuit said, alleged Cianciotto described him as "effeminate" to others in the office, "and depicted him in tights and a low-cut shirt 'prancing around'" and "alleges that the 'Muscle Beach Party' party poster, depicting Christiansen's head attached to a bikini-clad female body lying on the ground with her legs in the air, was seen by at least one co-worker as portraying Christiansen 'as a submissive sissy.'"

This was enough to state a claim, the court said, as Simonton and Dawson "merely hold that being gay, lesbian or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim."

Katzmann's concurrence outlined how sexual orientation discrimination logically comes within the rubric of Title VII.

"When the appropriate occasion presents itself, it would make sense for the court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton [was] issued," he said.

"First, sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly situated people differently solely because of their sex," he said, and he would adopt an "associational theory" of sex discrimination.

"I conclude that if gay, lesbian or bisexual plaintiffs can show that they would not have been discriminated against but for the sex of their associates, they have made out a cognizable sex discrimination claim," he said.

Susan Chana Lask, who argued for Christiansen, said the decision "gets us our day in court" on the gender stereotyping, and that Katzmann's concurrence "lays the groundwork for the Seventh Circuit to come out with their decision next in Hively."

"We're very optimistic they will reverse" in Hively, she said.

Rick Ostrove, a partner at Leeds Brown Law, argued for Cianciotto.

"It's time for Congress to act and pass a statute that bans sexual orientation discrimination in the workplace," Ostrove said Monday. "But as to this case, my client is looking forward to having it decided on the merits because we're confident we will be successful."

Howard Rubin, a partner at Davis & Gilbert, argued for all defendants but Cianciotto. He declined to comment.

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